(dissenting).
I respectfully disagree with my learned colleagues in their treatment of this case.
My disagreement is predicated upon the sole assignment of error pertaining to the *915learned trial court’s refusal to charge the timely submitted special request on inferences. See T.C.A. § 52-1432 (a) (2).
It is my position that the defendant, Roger Lee, had to possess the marihuana in order to sell it. He could not have sold the marihuana without possessing it. Hence, the evidence has clearly raised the issue of possession; and it is for the jury, in its wisdom, to determine with what intent the marihuana was possessed. When the evidence raises the issue it is then incumbent on the trial court to instruct the jury on the law applicable to the issue raised. See Taylor v. State, 212 Tenn. 187, 191, 369 S.W.2d 385. Here we not only have an issue raised by the evidence requiring an appropriate instruction; but we also have statutory wording, “shall”, making the instruction mandatory. See T. C.A. § 52-1432 and Louisville & Nashville R. Co. v. Hammer, 191 Tenn. 700, 705, 236 S.W.2d 971.
The failure of the learned trial judge to charge the request limited the jury in its power to assess, if they so desired, a lighter term of imprisonment. It certainly denied the defendant the right to have the jury make the determination from the amount possessed, of whether the substance was possessed with the intent to sell it or the intent to casually exchange it.
I cannot agree that Lee, by denying the sale, forfeits his right to the charge, anymore than would an alibi defense forfeit a person’s right to a charge on all the degrees of homicide included in a first degree murder indictment.
In short, my construction of the act, T. C.A. § 52-1432(a) (2), simply vests the jury with the power and authority, in their wisdom, to say from the facts and circumstances surrounding the arrest coupled with the amount of substance involved, whether it was possessed for “sale” or “casual exchange”. When, as here, the proof makes out a sale this still should not' preclude the jury from saying, “even though it was a sale we think it was a casual exchange and reduce the punishment accordingly.” In the absence of the requested charge this jury was allowed to make a determination without a full exposition of the law. See McCoy v. State, Tenn.Cr.App., 466 S.W.2d 540, 542.
I would reverse for the failure of the learned trial court to charge the requested instruction.